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Questions for Eric Holder

Questions for Eric Holder

Barack Obama's nomination of Eric Holder as the next Attorney General deserves special scrutiny as he appears Thursday before the Senate Judiciary Committee. A panel of Nation experts add their questions to the mix.

January 14, 2009

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How important is the Attorney General of the United States? Remember the Saturday Night Massacre. In the fall of 1973, rather than follow President Richard Nixon’s order to fire special prosecutor Archibald Cox, both Attorney General Elliott Richardson and Deputy Attorney General William Ruckelshaus resigned in protest. Then-Solicitor General Robert Bork ascended to the top office at Justice, and Nixon got his most immediate demand–Cox was sacked. But a nation and Congress were enraged; articles of impeachment were filed. Nixon declared, “I am not a crook!” But in less than a year, Nixon’s goose was cooked, and he resigned.

Though Republicans appointed by a Republican president, Richardson and Ruckelshaus acted to defend the Constitution, preserve checks on executive power and maintain the rule of law. In comparison, George W. Bush’s attorneys general and the Justice Department they led were a tragic farce. Whether it was flouting the Geneva Conventions, spying on Americans, allowing torture, suspending habeas corpus, curtailing free speech or running roughshod over Congress and the Constitution, Bush had no greater legal allies than the troika of John Ashcroft, Alberto Gonzales and Michael Mukasey. As Andrew Gumbel pointed out in these pages, under Bush the Justice Department was politicized to an extraordinary degree–its mission gutted, its civil servants demoralized and pushed out.

That’s why Barack Obama’s nomination of Eric Holder as the next attorney general deserves special scrutiny. Not because we expect criminality of the sort authorized by Ashcroft and company but because merely to undo eight years of official corruption will require an extraordinary attorney general–a principled, visionary, independent upholder of law and justice. With those hopes and concerns in mind, we asked legal eagles from our orbit for questions they would pose to Holder, who faces confirmation hearings on Thursday. —The Editors

Several months ago, you made a speech very critical of the Bush administration’s assaults on the rule off law, including its authorization of torture and warrantless wiretapping of Americans. You concluded by proclaiming that “we owe the American people a reckoning.” What will you do as attorney general to ensure that there is a “reckoning”?

Shortly after the USA Patriot Act was signed into law, at a point when the Bush administration was proposing to further erode barriers to governmental abuses, you argued that federal government officials who questioned the wisdom of eliminating established protocols and lines of separation between federal agencies–many of which were designed to protect against the concentration of executive power and the abuses that flow from it–should be fired. Specifically, you said in 2002 on CNN, “We’re dealing with a different world now. Everybody should remember those pictures that we saw on September the 11th. The World Trade Centers aflame, the pictures of the Pentagon, and any time some petty bureaucrat decides that his or her little piece of turf is being invaded, get rid of that person. Those are the kinds of things we have to do.” Why should you be trusted to uphold the Constitution and serve as the nation’s chief law-enforcement officer–as opposed to a mere legal extension of the unitary executive?

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MICHAEL RATNER

Vice President Cheney has admitted that he approved the use of waterboarding and said he would do so again. Senators Levin and McCain, along with twenty-three other Democrats and Republicans on the Armed Services Committee, found that former Secretary of Defense Rumsfeld was responsible for aggressive interrogation techniques that led to abuses at Abu Gharib, Guantánamo and elsewhere. In light of these admissions and findings of conduct that constitute open and notorious violations of federal criminal law–would you promise the American people to appoint a Special Prosecutor to investigate Cheney, Rumsfeld and others–including President Bush–who were involved in the torture program?

Recently issued Attorney General’s Guidelines for Domestic FBI Operations allow the FBI to begin an assessment, conduct surveillance and infiltrate an organization without any indication that a crime has been committed or is being planned. These guidelines grant the FBI authority to investigate individuals solely on the basis of race, ethnicity, religion or political belief, opening the door for racial profiling and persecution of political dissidents. As attorney general, would you revoke these guidelines and communicate clearly to the public and to the FBI that no domestic investigations shall be performed without any indication of criminal activity and that profiling of any sort cannot be employed?

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AZIZ HUQ

What will the Justice Department do to expedite the closure of the prison at Guantánamo Bay? Specifically, will you support the speedy and thorough development of criminal cases, where warranted, against high-level Al Qaeda leaders to ensure that the prison can be closed as quickly as possible?

There are more than 2 million people behind bars in the United States. There are more than 5 million more on probation or other forms of supervised release. It is clear incarceration or the rigidly penal approach to problems such as narcotics is failing. What do you intend to do to rectify this failure?

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NAN ARON

President-elect Obama has said that he is looking for judges who will ensure that our courts become “a refuge for justice” and who are “sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can’t have access to political power and as a consequence can’t protect themselves from being…dealt with sometimes unfairly.” How will you go about helping President Obama fulfill this promise? Are you willing to draw your nominees from a talent pool of legal services, public interest, criminal defense and civil rights lawyers?

Here’s a question originally posed by law professor Jonathan Turley to your predecessor Michael Mukasey: Is waterboarding a crime under US law, and will you prosecute recent instances of waterboarding?